The legitimacy-conferring capacity of constitutional courts: Evidence from a comparative survey experiment

Abstract

Can constitutional court decisions shape public opinion on a governmental policy? Previous studies have focused on the US Supreme Court, which enjoys a high degree of public support as the major resource of power for courts. In this study, we examine the extent to which courts can influence public opinion regarding a government bill at European courts. First, we argue that the public support for courts also allows them to move public opinion on policies into the direction of their decisions. This works in both directions: they can confer legitimacy to a policy that they support, but they can also de-legitimize a policy that they oppose. Second, we argue that this mechanism strongly depends on the amount of support that a court receives. It only has an effect for courts that possess a higher institutional legitimacy and among the group of citizens trusting a court. We test our arguments by combining a most different systems design for France and Germany with a survey priming experiment on a school security bill. France and Germany are selected for a most different systems design as they exhibit different institutional designs as well as different levels of support for the court at the aggregate level. The survey experiment is implemented within large national election surveys, the German Internet Panel and the French National Election Study. Both experiments contain more than 2,600 respondents each. Our survey experiment primes for decision outcomes and different institutions to understand whether there are differences between an institution supporting and opposing a policy and between a court and alternative institutions. Our findings confirm that with higher public support, courts can move the opinion of citizens to both legitimize and de-legitimize a policy. This effect can be found at the aggregate level for a court enjoying higher public support, but also at the individual level for respondents with higher trust in the court. Interestingly, courts can even move the opinion of citizens with strong prior attitudes in the opposite direction, if these citizens highly trust the court. These findings have implications beyond the study itself. First, they confirm that the legitimacy-conferring effect can also be observed for European courts, not only for the US Supreme Court. Second, they show that the relevance of a mechanism identified for a single case, like the US Supreme Court, might only hold for specific conditions. As public support for courts strongly varies across countries in Europe, we also expect the impact of any mechanism relying on public support to strongly vary, as we can observe in our own analysis.